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1 in the United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA PAUL BLAKNEY, Plaintiff, Case No. 3:18-cv-00098-TMB v. ORDER ON PLAINTIFF’S MOTION MADHU PRASAD, M.D., FAR NORTH FOR RECONSIDERATION (DKT. 28) SURGERY & SURGICAL ONCOLOGY, P.C. and GALEN ALASKA HOSPITAL, INC. d/b/a ALASKA REGIONAL HOSPITAL Defendants. I. INTRODUCTION The matter comes before the Court on Plaintiff Paul Blakney’s Motion for Reconsideration (the “Motion”).1 Blakney seeks reconsideration of the Court’s Order2 (the “Prior Order”) granting Defendants Madhu Prasad’s, M.D., Far North Surgery & Surgical Oncology, P.C.’s (“Far North”), and Galen Alaska Hospital, Inc. d/b/a Alaska Regional Hospital’s (“Alaska Regional Hospital”) Motion to Dismiss Complaint for Declaratory Relief (the “Motion to Dismiss”).3 Defendants oppose the Motion.4 The parties did not request oral argument, and the Court finds that it would not be helpful. For the reasons stated below, the Motion is GRANTED; after reconsideration of the Prior Order, this matter is DISMISSED due to lack of subject matter jurisdiction. 1 Dkt. 28. 2 Dkt. 27. 3 See Dkt. 19 (Motion to Dismiss); Dkt. 21 (Joinder to Motion). 4 Dkt. 32 (Alaska Regional Hospital’s Opposition); Dkt. 33 (Prasad’s and Far North’s Opposition). 1 Case 3:18-cv-00098-TMB Document 34 Filed 07/19/19 Page 1 of 25 II. BACKGROUND The action is a declaratory judgment action alleging preemption of an Alaska state law by the Employee Retirement Income Security Act of 1974 (“ERISA”), and by the terms of an employee welfare benefit plan subject to ERISA (the “Plan”).5 The Court reincorporates the factual and procedural background from the Prior Order.6 After the Court issued the Prior Order granting Defendants’ Motion to Dismiss, Blakney moved for reconsideration of the Prior Order dismissing the case for lack of subject matter jurisdiction.7 Specifically, Blakney contends that the Court’s ruling “overlooks and misapplies governing federal law,” and that the Court has jurisdiction over this action under 29 U.S.C. § 1132 (a)(3).8 Defendants oppose the Motion, arguing that the Court did not err in the Prior Order finding a lack of subject matter jurisdiction,9 and asserting that Blakney inappropriately raises new arguments in the Motion.10 The matter is now ripe for resolution. III. LEGAL STANDARD A. Motion for Reconsideration Ninth Circuit law counsels that reconsideration is “an extraordinary remedy, to be used sparingly and in the interests of finality and conservation of judicial resources.”11 While District 5 See generally, Dkt. 1. 6 See Dkt. 27 at 2–5. 7 Dkt. 28. 8 Id. at 1–4. 9 Dkt. 32 at 1–2; Dkt. 33 at 2. 10 Id. The Court requested that Defendants file a response, if any, to Blakney’s Motion under D. Ak. L.R. (Civil) 7.3(h)(3). 11 Big State Logistics, Inc. v. Gov’t Servs. Corp., No. 4:13-cv-00029, 2014 WL 12526313 at *1 (D. Alaska March 28, 2014) (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 1993)). See 2 Case 3:18-cv-00098-TMB Document 34 Filed 07/19/19 Page 2 of 25 of Alaska Local Rule 7.3(h) governs motions for reconsideration, substantive case law dictates that the Court may reconsider an order “where: ‘(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced.’”12 These circumstances are the sole grounds for granting a motion for reconsideration; such a motion “may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.”13 As many district courts within the Ninth Circuit have concluded, a party “must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party’s burden.”14 also Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)); Richey v. Borough, No. 3:14-cv-00170-JWS, 2015 WL 1962880, at *1 (D. Alaska April 30, 2015) (“Because of the interest in finality, however, courts should grant motions for reconsideration sparingly.”). 12 Mills v. Wood, No. 4:10-CV-00033-RRB, 2016 WL 10651094 at *1 (D. Alaska Dec. 1, 2016) (quoting Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc)). See also Richey, 2015 WL 1962880, at *1 (“According to that case law, reconsideration should be granted in three circumstances: First, upon the discovery of material facts that were previously unavailable or undiscoverable through reasonable diligence; second, if the court overlooked material facts that were presented to it before it made its decision; and third, if there is a change in the law after the court’s decision.” (internal citations omitted)); United States v. CNA Fin. Corp., 381 F. Supp. 2d 1088, 1096 (D. Alaska 2005) (citing School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). 13 Carroll, 342 F.3d at 945. See also Richey, 2015 WL 1962880 (“A motion [for reconsideration] will not be granted if it simply repeats arguments that were made, or could have been made, when the Court reached its original decision.”) 14 Ervin v. Soto, No. CV-13-4232-JVS (KK), 2015 WL 1540806, at *2 (C.D. Cal. Apr. 7, 2015); Nadolski v. Winchester, No. 13-CV-2370-DHB, 2014 WL 6632801, at *2 (S.D. Cal. Nov. 21, 2014) (“[A] simple retelling of the same claims that the Court already dismissed ... are not proper grounds for reconsideration.”); Johnson v. Wennes, 08-CV-1798-L(JMA), 2009 WL 1161620, at *1 (S.D. Cal. Apr. 28, 2009) (“A motion to reconsider is not another opportunity for the losing party to make its strongest case, reassert arguments, or revamp previously unmeritorious arguments.”). 3 Case 3:18-cv-00098-TMB Document 34 Filed 07/19/19 Page 3 of 25 B. Fed. R. Civ. P. 12(b)(1) Motion to Dismiss Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move for dismissal based on a lack of subject matter jurisdiction. Unlike the other defenses listed under Rule 12(b),15 a motion to dismiss for lack of subject matter jurisdiction may be filed at any time in the course of the litigation and cannot be waived.16 “Subject-matter jurisdiction defines the court’s authority to hear a given type of case.”17 “[I]n reviewing a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, [courts] take the allegations in the plaintiff’s complaint as true.”18 “Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.”19 “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.”20 “A party can make either a facial or a factual attack on subject matter jurisdiction.”21 “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.”22 Here, 15 See Fed. R. Civ. P. 12(h)(1) (discussing waiver of defenses listed in Rule 12(b)(2)–(5)). 16 See Fed. R. Civ. P. 12(h)(3) (“Lack of Subject-Matter Jurisdiction. If the Court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 17 United States v. Morton, 467 U.S. 822, 828 (1984). 18 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 19 Rattlesnake Coal. v. U.S. Envt’l. Prot. Agency, 509 F.3d 1095, 1102 n.1 (9th Cir. 2007). See also Alaska v. Kerry, 972 F. Supp. 2d 1111, 1120 (D. Alaska 2013). 20 Id. (quoting A–Z Int’l v. Phillips¸ 323 F.3d 1141, 1145 (9th Cir. 2003)). 21 ActiveVideo Networks, Inc. v. Trans Video Elec., Ltd., 975 F. Supp. 2d. 1083, 1085 (N.D. Cal. 2013). 22 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 4 Case 3:18-cv-00098-TMB Document 34 Filed 07/19/19 Page 4 of 25 Defendants have brought a facial attack and assert that the allegations contained in the Complaint are insufficient on their face to invoke federal jurisdiction; therefore, “[w]hether subject matter jurisdiction exists . does not depend on resolution of a factual dispute, but rather on the allegations in [the] complaint.”23 IV. ANALYSIS The Motion seeks reconsideration of the Prior Order at docket 27, which determined that the Court lacked subject matter jurisdiction in this declaratory judgment action.24 The Court first determines whether reconsideration of the Prior Order is warranted. Because the Court concludes that reconsideration is indeed warranted, the Court thereafter reconsiders the issues and holdings reached in the Prior Order. The Court addresses each in turn below. A. Whether Reconsideration of the Prior Order is Warranted Blakney moves for reconsideration of the Prior Order dismissing his case for lack of subject matter jurisdiction on the basis that “the ruling overlooks and misapplies governing federal law.”25 Specifically, Blakney contends that the Court erred in using a two-factor test for determining whether subject matter jurisdiction exists in this action, and argues that such application “is limited to situations in which a defendant in a state court action asserts a defense of federal preemption as grounds for removing the state action to federal court.”26 Blakney further contends that the Court’s “‘complete preemption’ analysis is inapplicable where the action is brought in federal court by an ERISA plan participant, beneficiary or fiduciary seeking the relief authorized under subsection 23 Wolfe, 392 F.3d at 362.
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